According to an Associated Press story, Supreme Court justices seemed sympathetic to fears that if the recording industry prevails in its suit against Grokster, the effect will discourage technological innovation. ” Justice Antonin Scalia said a ruling against Grokster, a developer of leading file-sharing software, could mean that if ‘I’m a new inventor, I’m going to get sued right away.'” Other justices seemed to agree, with Justice David H. Souter, noting that Apple iPod users could play illegally downloaded music, wondering if the industry hadn’t acted arbitrarily in suing Grokster, not Apple.
Due to a variety of issues, I am moving the content of The Benfell Blog onto a paid account at LiveJournal.com. You can continue to access this blog through my simplified link at blog.parts-unknown.org/.
I have just finished copying the existing content and will shortly modify my website to use the LiveJournal page.
For those like me, who have failed to find gainful employment since the last recession, there’s little cheer here as James Stack of InvesTech Research points to signs of yet another recession.
As U.S. Supreme Court Chief Justice William H. Rehnquist’s health deteriorates, many think President Bush will choose Antonin Scalia to replace him. “Speaking at a closed meeting attended by Wilson Center scholars, staff, and the media, Justice Antonin Scalia explained his approach to constitutional jurisprudence.” The Woodrow Wilson International Center for Scholars has published its account of Scalia’s remarks.
Scalia believes himself able to interpret the Constitution as its framers intended. Disregarding the logic behind Roe v. Wade, “he said, abortion was criminalized by most of the states 200 years ago but Supreme Court decisions of the last three decades have made state prohibitions on abortion unconstitutional. Those decisions, he argued, are wrong. The electorate can bring about democratic change by putting such issues on the legislative agenda, ‘but it is not the function of the Constitution to do that.'”
Michael Dorf, writing in Findlaw, describes the argument that the constitution does not mention abortion as “bad argument number one.”
- When somebody says that abortion–or any other right–is unprotected because [it is] not enumerated in the Constitution’s text, he flatly contradicts the Ninth Amendment. Conversely, the Roe and Casey Courts were both right to rely on this Amendment in their decisions.
But Scalia’s “originalism” defies and abandons logic. In his doctrine, we cannot derive rights, even when not to do so violates existing rights. Further, much like Mormons converting the dead, it presumes an ability to divine the framers’ original intent, and a right to speak for them.
- “The Court has essentially liberated itself from the text of the Constitution and even from the traditions of the American people,” Justice Scalia proclaimed.
The Sydney Morning Herald reports “Australians are as just as concerned about United States foreign policy as Islamic extremism and regard the US as more dangerous than a rising China, according to a new poll.”
As the world’s most important unimportant person slides towards death, Spiegel has published a piece by Hans Küng looking at the contradictions of this papacy. While I hope that Catholics will begin to redress the many injustices it has perpetuated, I also note that no other religious organization in the world rates so much media attention.
- I say baloney to any inference we red-carpeted any of this entourage,” an F.B.I. official said in a 2003 internal note. Another F.B.I. official, speaking on condition of anonymity, said this week regarding the airport escorts that “we’d do that for anybody if they felt they were threatened – we wouldn’t characterize that as special treatment.”
That, in a New York Times piece about Saudis being flown out of the country while many flights were still grounded. According to documents “obtained through a Freedom of Information Act lawsuit against the Justice Department by Judicial Watch, a conservative legal group,” the FBI provided escort even for members of Osama bin Laden’s family, and allowed them to “to leave the country without first being interviewed.”
- “From these documents, these look like they were courtesy chats, without the time that would have been needed for thorough debriefings,” said Christopher J. Farrell, who is director of investigations for Judicial Watch and a former counterintelligence interrogator for the Army. “It seems as if the F.B.I. was more interested in achieving diplomatic success than investigative success.”
In the latest round of events surrounding the prolonged case of Terri Schiavo, conservatives–not having gotten their way in court–are increasingly accusing judges of, as Terri Schiavo’s father put it, “running the country.” A Los Angeles Times story, noting that “Republicans have also taken the lead in recent years in championing the rights of states to resolve a wide variety of legal disputes without being second-guessed by the federal government,” recalls the Republican Party platform in 2004:
- “The sound principle of judicial review has turned into an intolerable presumption of judicial supremacy,” the [Republican Party platform] statement reads, decrying the effect of “scores of judges with activist backgrounds in the hard-left.”
But in a commentary published in the Los Angeles Times, Andrew Cohen, a CBS News Legal Analyst, argues that the Schindlers, Terri’s parents, had run out of good legal arguments. Resorting to bad arguments, the Schindlers, and the Bushes (both President George and Florida Governor Jeb), and Congress expected federal courts to supplant state courts.
- If accepted, it would have meant the end of state courts as we know them. No decision at the state level ever would be final, because every losing litigant at the state court level would be able to walk into federal court and declare a federal constitutional violation. State court trials thus would become like practice sessions and the federal courts, which are supposed to be of “limited jurisdiction,” resolving only certain kinds of disputes, would become free-for-alls.
In the end, the courts refused to accept the Schindlers’ claim that their daughter had been denied her constitutional rights.
- “The courts have consistently found that she did not want to be kept alive artificially,” said George Felos, the lawyer for Ms. Schiavo’s husband, Michael, who successfully petitioned to disconnect the feeding tube that had sustained his severely brain-damaged wife. “In that spirit, I hope the parents do not continue pursuing fruitless legal options until the end. I think their time would be better spent in reflection.”
The Schindlers and their allies are, in essence, claiming that their concept of justice should supplant the rule of law. This demands my attention, for in the past, I’ve argued that there is more to justice than law. Yet in this instance, it is law that finally calls an end to this saga. Justice, to the extent it is possible in such a tragic case, has long ago been served, and it is only law that has so prolonged it.
Ironically, it’s been Conservatives who have so long complained about “judicial activism.”
- “Congress’ desire to get a particular outcome led it to invite the courts to be activist, and the judges have properly refused,” said Douglas Kmiec, a professor of constitutional law at Pepperdine University School of Law, and a former Justice Department official in the Reagan and first Bush administrations.
Others remark on an apparent bias in seeking to preserve life:
- “I could not imagine [House Majority Leader] Tom DeLay interrupting an Easter recess to come back for special legislation because there was a possibility that someone on death row was innocent,” said Louis Michael Seidman, a professor at Georgetown Law School in Washington.
So conservatives have gone against the majority in public opinion, undermined the consistency of their own complains about judicial activism, and thus threatened to intrude on the lives of countless Americans in similar situations, making painful decisions about the lives of their loved ones, all to curry the favor of the Christian right.
Will it be worth it?
Some supporters of the Schindlers’ efforts to keep Terri Schiavo, in a persistent vegetative state and disconnected from a feeding tube a week ago, are giving out home addresses of Judge George Greer, whose ruling that the feeding tube should be disconnected has now been upheld in both state and federal courts, Florida senators who voted against legislation to reconnect the feeding tube, and Michael Schiavo, who has, for seven years, fought to have his wife’s tube disconnected.
A former leader of Operation Rescue, Rev. Pat Mahoney, a Presbyterian minister and the head of the Washington-based Christian Defense Coalition, claims to be unaware of any threats made against anyone, saying, “Some people might be compelled to pray in front of [Greer’s] house.” Prayer can take strange forms.
- “One person told me they hoped I died from cancer. Another said my family members should rot in hell,” [Nancy] Argenziano, one of nine Florida Republican Senators to vote against legislation to re-insert the feeding tube, said. “They are the most awful, venomous, un-Christian things you have ever heard.”
Indeed. It seems they turn now even against themselves: “‘[Florida Governor Jeb Bush] raised the family’s hopes but he still hasn’t acted,’ said a furious Randall Terry, [founder of Operation Rescue] and a spokesman for Schiavo supporters outside the Pinellas Park hospice where Schiavo is dying. ‘This, in our opinion, is reprehensible.'” But Bush has apparently continued to press for legislation rejected by the Florida Senate, specifically blaming those nine Republicans in the state Senate. “‘You get some of these people excited and they kill people. You can hear it in their tone. It’s been proven in the past,’ Argenziano said, referring to past abortion clinic bombings and shootings.”
- “I promise you that if she dies, there’s going to be hell to pay with pro-life, pro-family Republicans who have used pro-life, pro-family conservative rhetoric to get into power and then when they get into power, refuse to use it,” said Randall Terry, who founded the anti-abortion group Operation Rescue. “You can bet there will be people who just might lose their jobs after this is over.”